why you need an attorney during a divorce

Prenuptial Agreements: Is Yours Still Valid?

13 January 2016 by Diana Butler

Signing a prenuptial agreement may have seemed like a great way to protect your assets, but things change after a few years of marriage. If your partner has significantly more wealth than they did at the beginning of your relationship, you might feel entitled to at least some of what you have accumulated as a couple in your time together. Often, prenuptial agreements are hard to get around, but there are some things you can do to try have the agreement tossed as you enter divorce proceedings. 

1. Can you prove your spouse was unfaithful?

Many prenups have a faithfulness clause. This means that if your spouse cheated on you, the signed prenup can be void, if the state determines the clause to be enforceable. This is easy if you know for certain that your spouse did not honor their vows with fidelity. However, with so much money on the line, some people go to great lengths to hide their extramarital affairs. You can hire a private investigator to gather more evidence for your lawyer to use, or you can try and gather evidence on your own. Emails, text messages, photographs, or the testimony of others can help you to prove infidelity.

2. Were assets mingled?

Only certain assets are protected by prenuptial agreements. Your spouse should have gone to great lengths to keep community property separate from the assets protected by the contract. However, if your spouse used money that belonged to both of you to fund business or personal expenses, the protected assets are then co-mingled with community assets, rendering the prenup void. For example, if your spouse went on a business trip, but billed his or her conference fee and hotel stay to your personal account, and the business assets were protected by the prenup, you could argue that you are now entitled to business profits, since your own property helped to fund the business. 

3. Was the prenup signed under duress?

Sometimes, the nature of the agreement itself will make the contract inadmissible in court. If you can prove that your spouse or a close family member threatened you or your family in any way in order to coerce you into signing the prenup, your lawyer can work to make sure it is not recognized during divorce proceedings. 

4. Were you in the right mind when you signed?

Prenuptial agreements that are signed when one or both of the potential spouses are drunk, on drugs, or even exhausted or ill, may not stand up in court. Both parties should have entered into the agreement with understanding and mindfulness. 

5. Does the prenup accurately reflect the assets that are protected by it?

Sometimes, the wealthier partner may not be thorough in drafting the document, or they may fraudulently represent their wealth, failing to disclose in full their assets when the prenup is signed. If you can prove that your spouse did not allow you to see fully the wealth they were trying to protect when you signed (secret ban accounts, real estate holdings etc.), the prenup will no longer have bearing on current division of assets. 

6. Is the agreement too outlandish or unfair?

Sometimes, these agreements are used to establish the marital tone expected by each partner. Sharing of assets might be based upon frivolous expectations that are not realistic, such as the spouse gaining too much weight or a specified amount of physical intimacy. Your divorce attorney can use these specific expectations to show the the prenup was flawed from the beginning, and therefore should not be upheld by the judge. 

Going into divorce proceedings with a prenuptial agreement can make the division of assets a nerve-wracking time for you. With the help of your lawyer, you can fight the terms of the prenuptial agreement to make the split of financial assets and holding more fair for you. If you're looking for a divorce lawyer, check out a firm like Blumenauer Hackworth.

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